The principle ne bis in idem from the jurisprudence of European Human Rights Court point of view

I. Introduction

The principle ne bis in diem is enshrined in Article 4 of Protocol no. 7 of the European Convention on Human Rights. The European Court of Human Rights (hereinafter the ECHR) has broken it down into several elements that are necessary to trigger its application.

1) two sets of proceedings of criminal nature (bis);

2) concerning the same facts (idem);

3) against the same against the same offender;

4) decide.

Ne bis in idem is a key guarantee for the individual against abuses of the ius puniendi, and, on the other hand, a means to ensure legal certainty and the stability of the res iudicata.

II. Judgment A and B v. Norway

The European Court of Human Rights has ruled the cases A and B v. Norway. The ECHR ruled, by sixteen votes against, that there had been no violation of Article 4 of Protocol no. 7 (right not to be prosecuted or convicted twice for the same offence) of the European Convention on Human Rights.

The case concerned two taxpayers who submitted that they had been prosecuted and convicted twice, in administrative and criminal proceedings for the same offence. After examining the facts and circumstances, the ECHR concluded that there was no reason to cast doubt on the reasoning why the Norwegian legislature had chosen to regulate the socially harmful conduct of non-payment of taxes through an integrated double process (administrative / criminal). Furthermore, the ECHR did not question the reasons why the Norwegian authorities had chosen to deal separately with the more serious and socially reprehensible aspect of fraud in the context of criminal proceedings rather than an ordinary administrative proceedings. Among other things, the Court found that the conduct of double proceedings, with the possibility of combining different sentences, had been foreseeable for the applicants, who should have known from the beginning that criminal prosecution and the imposition of tax penalties was possible, or even more likely, on the facts of their cases. The Court observed that the administrative and criminal proceedings were conducted in parallel and were interrelated. The facts established in one set of proceedings were based on the other set and, as regards the proportionality of the overall sentence, the sentence imposed in the criminal trial had taken into account the tax penalty. The Court was satisfied that, while different sentences had been imposed by two different authorities in the context of different proceedings, there had nevertheless been a close link between them, both in substance and in time, for theme to be regarded as forming part of an overall scheme of sanctions under Norwegian law.

With the issuance of this judgment by the ECHR, controversies and discussions were numerous, mainly whether The Court had taken a fair stand or not. The right not to be prosecuted or convicted twice for the same offence is a fundamental principle in criminal law and is considered to have a double explanation for this. On one hand it is a guarantee for the individual to protect himself against abuses of ius puniendi and on the other hand a means to guarantee legal certainty.

What happened in 2016 was considered by scholars and practitioners of law as a decline of the ne bis in diem principle in terms of administrative criminal procedures by the ECHR. Coming out of its consolidated practice, The Court with this judgement seemed to defend the practice of dual systems of the contracting states and redefined the notion of ne bis in diem, recognizing that in certain circumstances a combination of criminal and administrative proceedings does not constitute a duplication of criminal proceedings, provided in Article 4 of Protocol No. 7 of the ECHR. On the contrary, where dual procedures represent “complementary responses to socially offensive behavior” and are combined in an integrated manner to form a “coherent whole” to address different aspects of the offence, they should rather be considered as part of a single procedure and not as a violation of the ne bis in idem principle. To this end, The Court requires that the two sets of proceedings should “sufficiently closely linked in substance and in time” and lists the factors that determine whether such a close link between them exists.

As to the connection in substance, it is necessary that the dual proceedings satisfy the following four conditions :

  • They pursue complementary purposes and thus address, not only in abstracto but also in concreto, different aspects of the social misconduct involved;
  • They are a foreseeable consequence, both in law and in practice, of the same impugned conduct;
  • They avoid, as far as possible, any duplication in the collection and assessment of the evidence;
  • They “above all” put in place an offsetting mechanism designed to ensure that the sanction imposed in the first proceedings is taken into account in the second proceedings, so that the overall amount of any penalties imposed is proportionate.

The impact of this decision-making on national legal systems

The A&B case against Norway is considered a key case or in other words source of law, and one of the most clear examples of this is the change in the Belgian legislation in 2019. To respect the principle “ne bis in diem”, criminal courts in Belgium must take into account administrative sanctions of a criminal nature when punishing tax crimes. The power of the tax authorities has been changed when it comes to the degree of the punishment, to facilitate the recovery of tax evasion. As part of these adjustments, some additional changes have been made to make the prosecution system more efficient and equitable.




Opinione nga ekspert – https://europeanlawblog.eu/2017/11/15/two-instruments-but-a-difficult-relationship-some-upcoming-decisions-of-the-cjeu-on-the-ne-bis-in-idem/

Intern: Eni Zere